Procedural Information BulletinNo. 148

Motions to disallow delegated legislation on grounds other than
the scrutiny criteria applied by the Regulations and Ordinances
Committee are undergoing something of a revival.

Two motions were moved together by leave to disallow different
parts of the same set of migration regulations on 1 November. One
of the notices had been given that day, and leave was necessary to
move it on the same day as well as combine it with the other
notice. The motions were moved because the regulations commenced on
that day and the majority of the Senate wished to disallow them
before they could have any effect. Disallowed regulations cease to
have effect at the time of disallowance, and any application of
them between their commencement and disallowance remains lawful in
spite of the disallowance, but this seldom leads to difficulties in
practice.

Parts of a set of civil aviation regulations were disallowed on
8 November, following complaints from the aviation industry about
anomalies in the regulations. The notice originally covered the
whole set, but was amended to restrict it to specific parts (for
the principles governing such amendments, see Odgers'
Australian Senate Practice, 9th ed, electronic update, p.
346).

The Senate again used its power to disallow determinations
approving alternative schemes promulgated by states in relation to
the right to negotiate under the native title legislation. A scheme
put forward by Western Australia was disallowed on 9 November.

Request to Auditor-General

On 2 November a motion was passed requesting the Auditor-General
to undertake an audit of the entitlements of members of Parliament,
following the controversy about the Minister for Employment,
Workplace Relations and Small Business’ Telecard.

In the past the Senate has made orders for production of
documents requiring Auditor-Generals’ reports on particular
matters, but since the passage in 1997 of the new Auditor-General
Act, which makes it clear that the Auditor-General is not subject
to parliamentary nor executive government direction, these motions
have been put in the form of requests to the Auditor-General.

At the end of the sitting period the Auditor-General indicated
that he would conduct the audit in accordance with the
Senate’s request.

Orders for production of documents

The Senate has on foot several continuing orders for production
of documents, requiring the presentation of periodical reports on
particular matters. One such order requires the Australian
Competition and Consumer Commission to report regularly on
anti-competitive practices by health funds and providers in
relation to private health insurance. Such a report was provided on
8 November.

The pursuit of matters relating to the safety of heavy trucks
continued with a further order for documents on 1 November, in
response to which a document was produced in accordance with the
order on the following day. The order for documents was in an
unusual form, providing that, if there was a failure to comply with
the order, the minister would have to make a statement of
explanation and a motion could then be moved to take note of the
statement. This was an attempt to use the mechanism employed in
standing order 74 in relation to answers to questions on notice,
expenditure of scarce legislative time in debate as an incentive
for ministers to comply.

On 9 November an order was passed for documents relating to a
development in a place with the uninspiring name of Dismal Swamp,
the documents being due on the first sitting day in the next period
of sittings.

Bill divided

The Health Legislation Amendment Bill (No. 4) 1999 was the
subject of an instruction to the committee of the whole on 30
October, pursuant to which, on the following day, the bill was
divided into two bills. When the bills were reported out of
committee, an amendment was moved to the motion for the adoption of
the report of the committee to defer until June 2001 consideration
of the bill created by the division of the original bill. Other
amendments were made to the original bill. The majority of the
Senate took the view that the provisions taken out of the original
bill were premature and should be deferred until the operation of
provisions in the principal act are reviewed.

This is only the second occasion on which the Senate has divided
a bill, the first occasion being in 1995, although the
Senate’s standing orders have always provided for the
division of bills, and the procedure is quite common in some state
parliaments.

The Senate’s amendments of the bill had not been
considered by the government in the House of Representatives at the
end of the sitting period.

Bills amended: same amendment

In the course of extensive amendment of the Family Law Amendment
Bill 2000 on 8 November, an amendment which had previously
been negatived was put again and carried. A point of order was
raised about whether this was in accordance with the standing
orders. Standing order 118(2) provides that an amendment may not be
moved if it is the same in substance as an amendment already
determined, unless a recommittal of the bill has intervened. The
Chair ruled that it was in order because in each case the amendment
had been put by leave as part of a package of amendments, with a
different relationship with other amendments in the package, so
that the amendment was not the same in substance in each case.

In the case of the Tobacco Advertising Prohibition Amendment
Bill, one amendment was not insisted on when disagreed to by the
government in the House, and substitute amendments were accepted in
relation to some amendments to the Telecommunications (Consumer
Protection and Service Standards) Amendment Bill (No. 2).

Controversy over the government’s scheme for grants to
private schools was reflected in extensive amendments and requests
for amendments to the States Grants (Primary and Secondary
Education Assistance) Bill on the last day of the period. Some
amendments were in the form of requests because they increased
grants in respect of children with disabilities. Other amendments
were intended to reduce grants in respect of private schools, but
the effect of the amendments was not sufficiently clear to conclude
that the effect of all of the Senate’s amendments was simply
to reallocate the appropriation and not increase its total. If that
were the case, none of the amendments would have had to be put in
the form of requests.

Senate Daily Summary

This bulletin provides Senate staff and others with a summary of
procedurally significant occurrences in the Senate. The Senate
Daily Summary provides more detailed information on Senate
proceedings, including progress of legislation, committee reports
and other documents tabled and major actions by the Senate. Like
this bulletin, Senate Daily Summary may be reached through
the Senate home page at www.aph.gov.au/senate